Capt. Atul Kumar Singh vs State And Anr.
2006 Latest Caselaw 1927 Del

JUDGMENT

A.K. Sikri, J.

1. The respondent No. 2 has filed complaint against the petitioner herein alleging that she had given Rs. 7 lacs in cash to the petitioner. In order to discharge this liability of loan, the petitioner had issued a cheque which got dishonoured on presentation and money was not paid even after notice of demand and, therefore, complaint under Section 138 of the Negotiable Instruments Act was filed. The petitioner is summoned in the said complaint. Notice is also framed and the matter is at the stage of evidence. The complainant has completed her evidence. The petitioner (accused in the said complaint) moved application dated 15.5.2004 for summoning the record of the Income Tax Department relating to the complainant. In this application, it was averred that in her cross-examination conducted on 10.10.2002 the complainant had alleged that she had filed the income tax return and disclosed the amount of Rs. 7 lacs in her income tax record and, therefore, income tax record was required to be summoned as the document filed before the income tax department was a public document within the meaning of Section 74(2) of the Evidence Act. After hearing this application, the learned Counsel MM dismissed the same on the ground that income tax return filed by the complainant before the income tax authority was not a public document and it was a document of private nature. The petitioner filed revision petition against this order which has also been dismissed by the learned ASJ vide order dated 27.7.2004, inter alia, observing as under:

I have carefully considered the rival submission made on behalf of both the parties. The respondent No. 2 has filed complaint under Sections 138 and 142 of the Negotiable Instruments Act on the ground that cheques issued by the petitioner were dishonoured, petitioner failed to make the payments of the cheques despite service of notice of demand. The provisions of Section 139 of the Negotiable Instruments Act raises a presumption in favor of holder of the cheque. It provides that there shall be presumption regarding the cheque being issued in discharge of debt or other liability. It is for the petitioner to rebut said presumption. The petitioner/accused has to prove his case and income tax return of the complainant is immaterial.

2. Challenging this order, the present petition is filed under Section 482 of the Code of Criminal Procedure. I am of the view that reasons given by the Courts below arc valid and no interference is called for in exercise of power under extraordinary jurisdiction.

3. It is rightly observed by the learned ASJ that when the complainant was cross-examined on 10.10.2002, she was not asked to produce income tax return. Instead, the application was filed two years after whereby the petitioner wanted to produce the official of the Income Tax Department as his own witness. Courts below are right in their opinion that the petitioner is trying to delay the proceedings. It is not in dispute that the petitioner had given the cheque in question. Section 138 of the Negotiable Instruments Act, thus, raised a presumption in favor of the holder of the cheque. It is, therefore, a case which would justify exercise of inherent powers and as there is no miscarriage of justice, the petitioner is to blame himself for not asking the complainant to produce the income tax return when she deposed on 10.10.2002.

4. I, therefore, do not find any merit in this petition which is dismissed.

5. The Trial Court record be sent back.